from the the-unseeing-eye dept

Abusive conduct by police officers -- up to and including killing someone for, say, holding a plastic bucket -- has always flown under the "your word against ours" radar. But now everyone has a camera, even the cops.

The push for body-worn cameras is still a good idea, but it has many, many flaws. It won't save the nation from police misconduct but it will put a dent in it. Back when the NYPD was ordered to begin a body camera pilot program, then-Mayor Bloomberg said the devices would become nothing more than another way to play "gotcha" with good cops.

A camera on the lapel or hat of a police officer... He didn't turn the right way. My god, he DELIBERATELY did it. It's a solution that's not a solution…

Bloomberg was prescient, but not in the way he imagined it. He felt cops would be accused of covering something up by failing to get the best angle when recording an arrest. But it looks like the limitations of the cameras themselves are capable of covering up bad behavior even without the active involvement of the officers wearing them.

The ACLU's Jay Stanley pointed this out last year in a post that echoes Bloomberg's complaint, but with the view that cops could use cameras to defeat transparency, rather than participate in it. We already know cameras operated by police officers seem to develop technical issues during controversial interactions. Some are switched off. Some produce video but no audio. Some develop intermittent problems that can't be replicated by tech support, but always seem to have captured everything but potentially damning footage.

Even when they're left on, they can still be used to control the narrative, as Stanley points out.

A stellar example of what I’m talking about can be found in the case of a man named Marcus Jeter, who was pulled over, beaten, and arrested by a Bloomfield, New Jersey officer in 2012. The officer who is beating Jeter can be heard on video yelling, “Stop resisting! Stop resisting! Why are you trying to take my fucking gun! Get off my gun!” In the officer’s dashcam video, it is unclear whether Jeter was, in fact, resisting and/or trying to take the officer’s gun, and Jeter was charged with a number of criminal counts including assault. Internal affairs cleared the involved officers of any wrongdoing and prosecutors offered Jeter a plea deal of 5 years in prison.

Fortunately for Jeter, a second video surfaced showing the incident from another angle. The video was from the dashcam on another patrol car that arrived at the scene as backup, and which prosecutors said was not initially provided to them by police. In the second video, it is clear that Jeter had his hands in the air from the beginning before being attacked by the officer. (The police officer was charged with aggravated assault, and he and another officer also faced charges including conspiracy and falsifying reports. A third officer pleaded guilty to tampering and retired. All charges against Jeter were dropped.)

By falsely shouting that Jeter was resisting and trying to take his gun, even as he beat the motorist, the officer was clearly acting for the cameras, aware that he was playing a role in a public drama where later interpretations of what took place would be contested. And his aggressive physical behavior was matched by an equally aggressive attempt to define how his own actions would be interpreted. He almost succeeded.

Officers are actors and directors in their own scenes. Even when performances are captured by bystanders and their cell phones, there's still plenty of "drama." Multiple cops swarm the same suspect, blocking the body from view. Officers shout "Stop resisting!" even when subjects are prone with hands behind their back and under the weight of four or five cops. This allows officers to deliver extra amounts of force, instantly justified by the repeated shouts about resistance.

This scenario has played out again. Footage captured by police body cameras appears to show a tough, physical struggle to subdue a suspect. Shouts of "stop resisting" continue throughout the recording. The up-close-and-personal body cam footage gives every appearance that officers are wrestling with a highly-combative suspect. But footage captured by another camera shows an entirely different scenario.

It’s hard to imagine what more a suspect could do to avoid being beaten by the police. Derrick Price not only puts his hands high in the air, he then proceeds to lie spread-eagle on the pavement before any of the Marion County sheriff’s deputies reach him. And yet the deputies beat him. What appears to be taking place in this video (as in many others, including the granddaddy of them all, the Rodney King video) is that police officers, angry at a suspect for fleeing (and perhaps disobeying previous orders to stop), have taken it upon themselves to punish the suspect for that disobedience.

Compare that to the "official" footage (which starts at 1:42 in the video above) captured by the officer's body camera. (There's a side-by-side comparison of the footage available here.)

[T]he difference between the two videos is… a result of intentional manipulation by the officers beating Price, who repeatedly yell “stop resisting!” as they kick and punch his unmoving body. And the body camera never properly captures the beating of Price, actually facing fully away from the action at some points. It is hard to tell how intentional this was on the part of the officer wearing the camera, but it’s easy to imagine that the officer knew that what his colleagues were doing was not acceptable, and intentionally sought to avoid videotaping them.

The devices that were supposed to result in better policing are becoming complicit in their abusive behavior. Stanley notes the camera was turned on far too late (after the officers had already swarmed the suspect) and turned off far too early (before the suspect was actually in custody). If this had been the only recording available, "our word against yours" would have been completely unassailable. After all, the police department had footage of a highly-physical struggle with a combative suspect. Without the footage captured by an impartial surveillance cam, everything about the arrest would have appeared justified.

from the bringing-a-gun-to-a-rock-fight dept

The U.S. Border Patrol has restricted border agents' authority to shoot at moving vehicles or at people throwing rocks, changing a controversial policy that has contributed to at least 19 deaths since 2010…

The new rules would bring the Border Patrol's practices closer to those used routinely by the nation's major urban police departments. They are a response, in part, to widespread complaints from immigrant advocates that border agents have shot and killed people in some cases when deadly force was not necessary to protect the lives of agents or the public.

House and Senate oversight committees requested copies last fall but received only a summary that omitted the most controversial findings — that some border agents stood in front of moving vehicles as a pretext to open fire and that agents could have moved away from rock throwers instead of shooting at them…

"It is suspected that in many vehicle shooting cases, the subject driver was attempting to flee from the agents who intentionally put themselves into the exit path of the vehicle, thereby exposing themselves to additional risk and creating justification for the use of deadly force," the report reads. In some cases, "passengers were struck by agents' gunfire."

Judging from this, one would almost believe certain CBP agents were just looking for excuses to shoot someone. And the CBP agents' response has been to claim that new guidelines -- telling them not to stand in front of escaping vehicles and to move away from rock-throwing individuals -- will somehow make the job more dangerous.

The response, marked "Law Enforcement Sensitive," states that a ban on shooting at rock throwers "could create a more dangerous environment" because many agents operate "in rural or desolate areas, often alone, where concealment, cover and egress is not an option."

If drug smugglers knew border agents were not allowed to shoot at their vehicles, it argues, more drivers would try to run over agents.

The authors of the report had this to say in response to the CBP's speculative assertion (spearheaded by CBP union reps, who have stated that they will "oppose any restriction on CBP officers' use of force").

"It should be recognized that a half-ounce (200-grain) bullet is unlikely to stop a 4,000-pound moving vehicle, and if the driver … is disabled by a bullet, the vehicle will become a totally unguided threat," it says. "Obviously, shooting at a moving vehicle can pose a risk to bystanders including other agents."

So, while the new guidance lays out some common sense rules in hopes of decreasing the number of deadly shootings, some feel it still doesn't go far enough. The ACLU is recommending the use of body cameras to ensure each use of force is properly documented. Zoe Lofgren has called for more transparency from the agency itself, which has still refused to reveal how many officers (if any) received any sort of disciplinary action for inappropriate use of force.

The CBP obviously has transparency issues. Every effort was made to prevent this report from being made public, despite the CBP itself commissioning it. And, as we've covered earlier, the CBP has obscured the use of its drone "lending library" by failing to produce documents and heavily redacting those it did turn over in response to FOIA requests.

It's one thing for these agents to defend themselves against deadly force. It's quite another to put yourself in harm's way simply to justify the use of deadly force (the it's-coming-right-for-us loophole). If the agency is truly seeking to rid itself of its trigger-happy reputation, it needs to enforce these guidelines and open up its use of force track record to public scrutiny.

from the eye-spy dept

Recently, we've covered a series of stories centered around license plate scanners and the way such information is stored. Despite the protests of the ACLU, local law enforcement agencies have widely deployed the technology and there have also been requests from federal agencies to build a central database of information based on plate scans. If the latest reports are to be believed, however, these would simply be attempts to nationalize an endeavor that has already been undertaken by private industry.

While public debate about the license reading technology has centered on how police should use it, business has eagerly adopted the $10,000 to $17,000 scanners with remarkably few limits. At least 10 repossession companies in Massachusetts say they mount the scanners on spotter cars or tow trucks, and Digital Recognition Network of Fort Worth, Texas, claims to collect plate scans of 40 percent of all US vehicles annually.

And that's just one company. The article goes on to note that there are other groups in the data brokerage business that otherwise claim to collect a large majority of US vehicles every year. Those groups freely admit to providing those scan databases to a variety of third parties.

The main commercial use of license plate scanners ­remains the auto finance and auto repossession industries, two professions that work closely together to track down people who default on their loans. Digital Recognition lists Bank of America Corp., JPMorgan Chase & Co., HSBC Holdings, and Citibank among its clients, while MVTRAC boasts that it serves 70 percent of the auto finance industry.

Digital Recognition already provides its entire data pool to more than 3,000 law enforcement agencies nationwide, free of charge for most searches. The Massachusetts State Police is a registered subscriber, as are the Boston, Cambridge, Somerville, Brookline, and Quincy ­police departments. Even ­Boston College and Brandeis police have access to the firm’s entire scan database.

Now, in response to the privacy concerns raised by activists, what the data brokers and repo folks will tell you is that these scans typically occur in public places. That's not always true, since the repo trucks often will enter private property, such as the parking lot of an apartment or condo complex, but their point is that there is no expectation of privacy in an area that's in plain sight. They'll also tell you that these are just license plate scans, not detailed personal information about anyone in particular.

But that's bullshit, of course. It ignores the practical application of the scan database, as well as to whom that information is being sold. Banks, PIs, and creditors can all scrub this raw data against available DMV and governmental information, while law enforcement agencies both local and federal can build up a database that tracks the movement of any scanned vehicle and the citizens associated with it. If we could get Thomas Jefferson on the horn and ask him what he thought of all this, I'd argue that he'd be spending too much time picking his own jaw up off the floor to give us a proper response.

“Right now, it's the wild West in terms of how companies can collect, process, and sell this kind of data,” says Kade Crockford of the American Civil Liberties Union of Massachusetts. “The best legal minds, best public policy thinkers, and ordinary people whose lives are affected need to sit down and think of meaningful ways we can regulate it.”

Which is exactly what some legislators in Massachusetts are attempting to do with legislation, but it isn't the first time crafting this kind of law has been tried. All previous attempts have been torpedoed by the data broker industry, including one case in Utah, where Digital Recognition sued the state for its ban on plate scanners as a first amendment violation. That seems to stretch the definition a bit too far.

So, if you own a car, a private company that deals for free with law enforcement agencies knows who you are, where you've been, and where you spend most of your time. And, without additional legislation, they do so without the checks and balances that would be insisted upon were the LEOs doing the scanning themselves. This must be what they mean when they say that private industry will always outpace government.

from the you-have-a-friend-request-from-GOVERNMENT dept

The ACLU of California has put together a thorough report on metadata, the information harvested daily by the NSA, as well as by several private contractors working in conjunction with law enforcement and investigative agencies.

Those involved in this harvesting often downplay the true impact of this information, which is often accessed without a warrant, claiming that what's gathered amounts to nothing more than tiny, abstract data points. This couldn't be farther from the truth, but pushing this narrative allows the Third Party Doctrine (information voluntarily given to third parties carries no expectation of privacy) to be invoked and the Fourth Amendment (protection against unreasonable searches) to be buried.

The report goes into great detail on just how much metadata can reveal about a person, something these agencies know but are in no hurry to admit to the public. The entire report is an eye-opening read -- the sort of thing that should be put in the hands (or eyes, I suppose) of anyone out there who's still buying into the deflection tactics deployed by the NSA and others.

The ACLU makes a very good point about how the delineation between metadata and content isn't nearly as clear as surveillance proponents make it out to be.

Although this distinction may appear clear, it quickly becomes blurry on closer examination. For example, technically speaking, a URL is very much a “delivery instruction;” it specifies the address of the web page that you are requesting. But it is also content: requesting a web page essentially means sending a message saying “please send me back the page found at this URL.” In addition, a single URL reveals exactly which page was sought, and thus exactly what content was received…

In addition, whether information is content or metadata can depend not only on the type of information but also on the context in which it is created or used. This means that exactly the same information can be content in one situation and metadata in another. For example:

Your location may or may not be content depending on context. If you call your friend and say “I am at Starbucks,” the words you speak are content. If you use your smartphone to “check in” with Foursquare, that check-in is also content. But many courts have held that your cell carrier’s record of the location of your phone at the exact same moment is not content. And what if you take a picture or post a Tweet that you tag (intentionally or unintentionally) with your current GPS coordinates?

The identity of your friends and contacts may or may not be content depending on context. If you write an email stating that “John is my friend,” that statement is content. But it is less clear whether the fact that John is on your Facebook friend list is also content, even though it conveys exactly the same message.

The agencies helping themselves to this data are wholly unconcerned that this data could also be considered content. The laws governing these "records" have declared it all fair game. As the report points out, even Mike Morrell, the former CIA official, has admitted there's no clear distinction.

“There’s not a sharp difference between metadata and content. . . . It’s more of a continuum.”

But the law says they can have it, and so they take it.

Further on in the report, the ACLU points out that this cavalier attitude towards metadata, coupled with the ease of access, greatly encourages abusive "fishing expeditions."

In 2010, Michigan police sought information about every single phone located near the site of a planned labor protest without a warrant.

A Tennessee sheriff requested the location of his daughter when she was out past her curfew.

A police chief in South Carolina obtained four “tower dumps” providing information about every cell phone within range of two separate cell towers after his personal vehicle was burglarized.

As the ACLU states, these incidents are only the tip of the iceberg. Many more abuses of collected data are happening, most of which won't be exposed until long after the abuse has taken place. This isn't an indictment of law enforcement specifically, but a cautionary statement of what will happen and continue to happen until better legal safeguards are put into place. Easy access combined with a wealth of information is abuse waiting to happen.

While the focus of the past several months has been the NSA's surveillance programs, the most frequent requests for data come from law enforcement agencies. This means that even if the NSA has no interest in your metadata, there are a ton of agencies that might find it more fascinating.

Just as certainly as Target can figure out you're pregnant by tracking your shopping habits in its stores, agencies can draw plenty of their own conclusions from the wealth of metadata that's only a subpoena away (at most). And with news surfacing more and more frequently that law enforcement and security agencies are equating dissent with terrorism, this non-stop collection of metadata has the potential to drag those that are simply unhappy with the status quo into their ever-widening surveillance nets -- and quite possibly into the gears of the criminal justice system itself.

There's no such thing as "just metadata." Given enough data points, anyone's life is an open book -- one that can be perused at will by a variety of government agencies. The fact that these agencies rely on outdated decisions and make clunky, dusty comparisons (no more expectation of privacy than the outside of an envelope!) clearly exposes the hypocrisy at play: they love the advantages technological advances give them (and the massive amount of metadata these generate) but they have no desire to update the laws governing these so-called "business records." "Just metadata" is a lie -- a lie that services the surveillance state and makes a mockery of the phrase "expectation of privacy."

from the the-War-on-Drugs-has-no-time-for-your-outdated-'rights' dept

Early last year, the news surfaced that the DEA was bypassing Oregon state law by using administrative subpoenas to get around the state's warrant requirement for drug prescription database access. "Administrative subpoenas" are yet another government tool that allows agencies to seek information that would normally require a warrant, but without the hassle of running it past a judge or even showing probable cause.

For the first time, a federal judge has ruled that patients have a reasonable expectation of privacy in their drug prescription records, and that law enforcement must obtain a warrant in order to search such information…

“This is a victory for privacy and for the constitutional rights of anyone who ever gets drug prescriptions,” said ACLU Staff Attorney Nathan Freed Wessler, who argued the case last month. “The ruling recognizes that confidential medical records are entitled to the full protection of the Fourth Amendment. The court rightly rejected the federal government’s extreme argument that patients give up their privacy rights by receiving medical treatment from doctors and pharmacists.”

As the ruling points out, citizens have long associated privacy with medical treatment, something that has gone hand-in-hand dating back to the 4th century B.C.E. and the origin of the Hippocratic Oath. It also points out the obvious: federal law itself (HIPAA) contains built-in privacy protections. (Hence the form you have to sign, the privacy info sheet you're handed on every visit, and signs everywhere telling you to stand behind them for the privacy of the patient in front of you.)

The judge's decision also notes that stripping away this expectation of privacy will have a chilling effect on those seeking medical care, something that could have very adverse effects on the health of people who might avoid seeking treatment because they fear their medical records will be exposed.

As the ACLU notes in its press release, it's not exactly happy the state of Oregon has chosen to create a centralized database of drug prescriptions, but, if it is going to do so, it has at least chosen to take the privacy of those contained in the database very seriously.

This decision strikes a small blow against the government's routine abuse of "exceptions" to warrant requirements as well as against its even more routine abuse of the "third party doctrine," which the DEA actually used to claim that talking to a doctor is no different than dialing a phone. The DEA knows there's a huge difference between these two "third parties" but applying that knowledge means showing probable cause and getting a judge to sign off on the warrant, two aspects it apparently feels only hampers its War on Drugs.

The request to bar nonlethal weapons was made by the ACLU, the Texas Appleseed group, along with the Mexican American Legal Defense and Educational Fund, Disability Rights Texas, Texans Care for Children, the Texas Criminal Justice Coalition and the National Alliance on Mental Illness Texas.

"Tragic incidents like this one demonstrate why the state should not grant police free rein to wield weapons in schools for the apparent purpose of maintaining order," said Terri Burke, executive director of the ACLU of Texas. "Schools should be safe havens from this type of police use of force. I hope the commission will heed our call to end use of Tasers and pepper spray."

This attacks part of the problem. These weapons are often deployed carelessly because of their "nonlethal" descriptor. The indiscriminate use of Tasers has resulted in serious injuries and death over the past several years but banning these nonlethal weapons leaves officers employed by schools with few options when the use of force is necessary.

The use of Tasers and pepper spray was defended by Chief C.A. "Chuck" Brawner, of the Spring Branch Independent School District police force, who said nonlethal weapons are necessary so officers don't have to use firearms or nightsticks on unarmed students…

"When you take away the pepper spray and you take away the Taser, what do you have left?" Brawner said. "What if there are several people and you have one officer and they can't control them and they could get away and cause other problems, how do you stop them? When you start taking away other options other than a firearm or a nightstick, what else are you going to use?''

A ban of Tasers and pepper spray would arguably make things worse, leaving officers with the option of beating or shooting students when things get out of hand. This problem needs to be approached from a different direction if schools hope to prevent this sort of thing in the future.

More training is obviously key, and not just training officers on how to deploy nonlethal weapons more "safely," but training them how to resist the impulse to deploy nonlethal weapons when the situation doesn't warrant it. This is much trickier. Fights have occurred in schools for as long as schools have been around. For years, they were broken up by faculty with no training and no weapons, lethal or not. The prevailing belief that only a law enforcement officer can control fighting students is not only wrong, but it's led to on-campus officers handling a great deal of the intervention and discipline that administrators themselves used to handle, often with regrettable results.

This has the effect of turning a common schoolyard fight into a criminal activity, and the response tends to be tailored more towards stopping a street fight than breaking up an altercation between students. If the students aren't using weapons (and they shouldn't be, what with all the other policies in place), then the responding officer shouldn't feel a need to use a weapon either.

If the situation seems to be escalating dangerously, the on-campus officer should have several nonlethal options to deploy before turning the situation deadly. But even the deployment of tasers and pepper spray should be a last resort rather than something used to quickly nullify the perceived threat. The safety of the students should still be paramount. Deploying a Taser simply because someone isn't moving fast enough, being responsive enough or simply "looking threatening" is not the correct response.

I agree with the ACLU's assertion that schools should be a "safe haven" from the use of force, but a ban will have negative consequences, especially if the underlying issues (the use of police officers as a disciplinary tactic; the overuse of force by resource officers) aren't addressed. Instead of a tasing that leads to a coma, we'll have gunshots and blunt force trauma. There's a culture grown from zero tolerance policies and its attendant paranoia that infects administrators and the officers they employ. This needs to addressed before we can start removing nonlethal options.

The Wall Street Journal reported that the ACLU is helping coordinate Snowden’s legal defense in the U.S.

The full WSJ article is behind a paywall, but it states:

The elder Mr. Snowden participated in the chat from the Washington, D.C., office of his attorney, Bruce Fein, and was connected to his son with the help of Ben Wizner, an attorney with the American Civil Liberties Union, who is involved in coordinating Mr. Snowden's legal defense in the U.S.

As Greenwald notes, that's very good news. It also suggests that the claims that Snowden's legal efforts are somehow in the hands of Julian Assange are also not true.

The approach in Pittsburg, Calif., is typical: a police policy document there says that license plate readers can be used for "any routine patrol operation or criminal investigation," adding, "reasonable suspicion or probable cause is not required." While many police departments do prohibit police officers from using license plate readers for personal uses such as tracking friends, these are the only restrictions. As New York's Scarsdale Police Department put it in one document, the use of license plate readers "is only limited by the officer's imagination."

This "deploy first, restrict later" approach seems to be the default when it comes to new law enforcement technology. As we've noted before, law enforcement agencies (both local and federal) have been utilizing drones for investigative and surveillance purposes, most without establishing ground rules or taking into consideration possible privacy issues.

The other issue is a lack of standardized rules controlling the collection, usage and retention of license plate data. The Minnesota State Patrol deletes all records after 48 hours, but it's the exception. Most other agencies hold onto all data for anywhere from 90 days to 5 years. Responses from three agencies in Texas specified no end date, so until otherwise indicated, it's presumed to be indefinite.

Why are these agencies holding on to this data for so long? And why so much of it? The information the ACLU received indicates that license plate "hits" make for a very small percentage of records retained.

For example, in Maryland, for every million plates read, only 47 (0.005 percent) were potentially associated with a stolen car or a person wanted for a serious crime. [Other examples: Burbank, IL - 0.3%, Rhinebeck, NY - 0.01%, High Point, NC - 0.08%.] Yet, the documents show that many police departments are storing – for long periods of time – huge numbers of records on scanned plates that do not return hits. For example, police in Jersey City, N.J., recorded 2.1 million plate reads last year. As of August 2012, Grapevine, Texas, had 2 million plate reads stored and Milpitas, Calif., had 4.7 million.

This is a concern for many reasons. First, storing millions of records on plates unrelated to criminal activity opens the door for potential abuse, as would any database of its size. One snapshot isn't a problem, but multiple photos over an extended period of time turn plate scanners into tracking tools.

What can location data reveal about people? Trips to places of worship, political protests, or gun ranges can be powerful indicators of people’s beliefs. Is it really the government’s business how often you go to the drug store or liquor store, what doctors you visit, and the identities of your friends? I’m sure all of us can remember something from our past that could embarrass us. If the government comes to suspect you of something in 2020, should it have access to databases stretching back years that could dig up facts about you that previously went unnoticed?

Not only does this give law enforcement a pretty good indication of your habits, it also opens the door to misinterpretation. Someone traveling back and forth frequently from high crime areas might be assumed to be somehow involved with the criminal activity there. That's just one example, but amassing non-specific data encourages investigators to begin "connecting dots" and inferring suspicious behavior where there is none. Finding patterns is something the brain does well, even if not encouraged. But not every pattern is truly a pattern, nor does every perceived pattern indicate something of significance. (See also: numerology.)

Of additional concern is the fact that some of this retained data isn't in law enforcement hands at all.

License plate readers are used not only by police but also by private companies, which themselves make their data available to police with little or no oversight or privacy protections. One of these private databases, run by a company called Vigilant Solutions, holds over 800 million license plate location records and is used by over 2,200 law enforcement agencies, including the U.S. Department of Homeland Security.

The ACLU is calling for law enforcement agencies to adopt certain basic policies to ensure proper protection of license plate data, as well as recommending the retention period of non-suspect data be measured in days, rather than weeks or years.

License plate readers may be used by law enforcement agencies only to investigate hits and in other circumstances in which law enforcement agents reasonably believe that the plate data are relevant to an ongoing criminal investigation.

The government must not store data about innocent people for any lengthy period. Unless plate data has been flagged, retention periods should be measured in days or weeks, not months and certainly not years.

People should be able to find out if plate data of vehicles registered to them are contained in a law enforcement agency’s database.

Law enforcement agencies should not share license plate reader data with third parties that do not follow proper retention and access principles. They should also be transparent regarding with whom they share license plate reader data.

Any entity that uses license plate readers should be required to report its usage publicly on at least an annual basis.

What the ACLU is asking for isn't overly-restrictive. In fact, what's listed here seems to be a bare minimum, common sense approach to data collection and retention, one that law enforcement agencies should have had in place before deploying the plate scanners. There's nothing about this that unduly binds law enforcement's hands in utilizing these scanners for their intended purpose. All these policies would do is trim down the likelihood of abuse and prevent agencies from collecting data simply to be collecting data.

from the to-which-the-feds-will-scream-national-security-and-shut-up dept

There have already been a few lawsuits filed about the various NSA surveillance revelations of the last week, but one to watch closely is the lawsuit filed yesterday by the ACLU on its own behalf. The ACLU frequently represents others, but in this case, it notes that it's a Verizon customer, so the mass sucking up of all phone call records on Verizon directly impacts the ACLU.

"This dragnet program is surely one of the largest surveillance efforts ever launched by a democratic government against its own citizens," said Jameel Jaffer, ACLU deputy legal director. "It is the equivalent of requiring every American to file a daily report with the government of every location they visited, every person they talked to on the phone, the time of each call, and the length of every conversation. The program goes far beyond even the permissive limits set by the Patriot Act and represents a gross infringement of the freedom of association and the right to privacy."

The ACLU is a customer of Verizon Business Network Services, which was the recipient of a secret FISA Court order published by The Guardian last week. The order required the company to "turn over on 'an ongoing daily basis' phone call details" such as who calls are placed to and from, and when those calls are made. The lawsuit argues that the government's blanket seizure of and ability to search the ACLU's phone records compromises sensitive information about its work, undermining the organization's ability to engage in legitimate communications with clients, journalists, advocacy partners, and others.

As we had just pointed out, the ACLU lost its case before the Supreme Court on this very subject (the Constitutionality of the FISA Amendments Act) just a few months ago, because the Supreme Court argued that the plaintiffs in that case (Amnesty International) only had speculation that its lawyers had their records monitored. But here, the ACLU rightly points out, it now has the evidence that the ACLU's calls were sucked up in this dragnet.

In other words, this time, there should be no issue of "standing" to deal with.

Of course, the feds will respond the way they normally do in such cases: claiming national security and sovereign immunity. That's what let the feds off the hook on the only other case where evidence of actual monitoring had been leaked, and where the "standing" issue wasn't in dispute. In that case, an appeals court ruled, basically, that the government never actually has to have the Constitutionality of such laws determined in court, because it can claim sovereign immunity to kill off any such lawsuits. If that seems like a crazy result, you'd be correct. That ruling was in the 9th Circuit. This new case is being filed in the Southern District of NY, which is in the Second Circuit. Hopefully, the court rules the other way, setting up a Supreme Court case to resolve the circuit split. Unfortunately, the Supreme Court isn't known for being particularly great at protecting civil liberties lately, so even that may be risky. But, at least there's a chance.

While having access to geolocation data is clearly useful for law enforcement agencies, without the resource limitations that used to discourage the government from tracking you without good reason, the limits on when and how geolocation data can be accessed are unclear. A police department, for example, might not have the resources to follow everyone who lives within a city block for a month, but without clear rules for electronic tracking there is nothing to stop it from requesting every resident's cellphone location history.

Obviously, we expect people to see us when we step out onto the street each morning, but we don't expect those people to track all of our movements over the course of days, weeks, months, or even years.

Who can possibly argue against all that? Well, there's Joseph Cassilly, who had been the president of the National District Attorney's association. His basic argument is that having easy access to this data makes the job of law enforcement easier:

A recent example of this was in a gang shooting in my jurisdiction wherein an anonymous caller who feared gang retaliation if his identity was known gave the police the identity of two gang members who committed the murder. The police received cell phone information regarding these individuals from prior arrest reports. The cell-site historical information for the time of the killing shows that those two cell phones were hitting off the same tower at the same time in the area of the murder.

Nice story, but there is nothing in the Constitution that says we need to make law enforcement's job easier. In fact, it's the opposite. The reason we have a 4th Amendment is to make law enforcement's job more difficult. But that's a choice we make as a free society, recognizing that protecting our civil liberties and freedoms is an important barrier to inevitable law enforcement abuse.

Also in favor of easier spying on people is Rep. Trey Gowdy, who seems to argue that using your GPS data to track you is no different than other "advancements" like "DNA analysis, fingerprint analysis, voice exemplars, blood spatter, or court-approved wiretapping." Gowdy is a bit more middle-ground here, suggesting the importance of privacy, but saying he thinks that location data should require a "lower standard" for a warrant than probable cause. Of course, the problem there is that the whole "probable cause" bit comes to us from The Constitution. So, changing that is difficult.

Either way, you can check out the full arguments and vote for which ones you find most compelling...